27 Ind. App. 544 | Ind. Ct. App. | 1901
— The appellee, Sarah Holliday, brought her proceeding in the co-urt- below to review a judgment of that court, and obtained a modification of that judgment. William F. Bartmess, William Y. Stuárt, and George B. King appealed to the Supreme Court, from which the cause was transferred to this court.
The facts shown by the appellee’s amended complaint with her supplemental complaint, so far as they need be stated here, were substantially as follows: On and prior
On the 7th of January, 1899, the appellant Bartmess filed his answer in that cause. On tire 9th of January, 1899, the plaintiff, Lucas, by leave of court, filed his amended complaint therein, which is set out in the complaint for review, being his complaint against Eli Holliday and the appellee and the appellants Bartmess and Stuart, in two paragraphs, one seeking judgment against Eli Holliday on his certain promissory note executed by him to Lucas on the 3rd of April, 1897, due one year after date, and the foreclosure of a mortgage of the same date executed to Lucas by Eli Holliday and the appellee, his wife, on a certain tract of eighty acres of land in Tippecanoe county, given to‘ secure said note, this paragraph of complaint alleging, that “defendant William E. Bartmess and William V. Stuart are claiming some interest in said lands, the exact nature of which is to the plaintiff unknown, but which plaintiff says is inferior to plaintiff’s rights, and they are made
In the further proceedings in that cause set forth in the complaint for review, it appeared that on the day on which the amended complaint was filed, January 9, 1899, the appellant Bartmess withdrew his answer theretofore filed as above shown, and filed his “answer to the plaintiff’s complaint”, alleging in this answer that on the 9th of February, 1898, he obtained judgment against Eli Holliday in a specified amount, in a court of Tippecanoe county, and that this judgment was “a junior lien to the plaintiff’s said mortgages. He asks that the proceeds of said sale be first applied to the payment of the plaintiff’s claims and costs, and the balance applied to the payment of the judgments according to the priority of the said liens.” On the same day the appellant Stuart filed his separate “answer to the plaintiff’s
The complaint for review, after thus setting forth the proceedings and judgment in the original action, alleged what the court therein adjudged, the averments' concerning the judgment being in agreement with the entry of record so set forth. It was further alleged in the complaint for review that the appellee never appeared, either in person or by attorney, to the original action or to any proceeding had therein, but that the decree therein was rendered upon her default; that on and prior to the 17th of September, 1896, said Eli Holliday was the owner in fee simple of said land, and on the 9th of January, 1899, and on the day of the rendition of said decree he was, and he still is, the owner thereof in fee simple; “that the above and foregoing contains a full, true, and complete copy of all the pleadings filed and also of all the orders and decrees made of record in said cause”; and that the land in question, at the time of the rendition of said decree, was of the value of $4,800. The complaint for review then averred manifest error in said decree, in a number of specifications, some of which will be recited later in this opinion.
Besides the appellants, Eli Holliday was made a defendant to the proceeding for review, and duly defaulted. Afterward, the appellee filed her supplemental complaint showing that since the filing of her complaint for review the sheriff, King, by virtue of the decree aforesaid, had sold the land for $4,600 cash; that after the satisfaction and full payment of the Lucas mortgages and costs of foreclosure, there still remained in his hands a surplus of $1,231.65; that before his sale the appellee notified him that as the Avife of Eli Holliday she claimed the surplus, etc., to the extent of one-third the value of the laud sold; that after the sale, and while the surplus was still in the possession of King, she demanded of him that all the surplus he paid to her, as it did not exceed one-third the value of the land, etc.
The appellants separately demurred to the appellee’s amended complaint and supplemental complaint, for Avant of sufficient facts. These demurrers having been overruled, and the demurrants, severally, having elected to stand by their demurrers, the court rendered judgment thereon in favor of the appellee against the appellants and against
The appellee’s claim herein is based upon the theory that, as against the judgment creditors Bartmess and Stuart, the appellee as the wife of Eli Holliday, the judgment debtor, whose prior inortgages upon his land, in which the appellee joined, were foreclosed, is entitled to one-third of the real estate, or one-third of the proceeds thereof, under the statute, §2669 Burns 1901, §2508 R. S. 1881.
In Purviance v. Emley, 12 6 Ind. 419, it was held that where a wife joins her husband in a mortgage of his land to secure his debt, she, in a suit to foreclose the mortgage, has a right, under this statute, to' an order directing .that her husband’s two-thirds interest be first offered for sale to satisfy the mortgage debt; and that if upon the foreclosure sale the husband’s two-thirds interest in the land should not sell for enough to satisfy the mortgage debt, and the wife’s inchoate interest of one-third be also sold, sha is entitled to the proceeds of such one-third interest, that is, to one-third of the proceeds of the sale of the land, as against
The statute above mentioned provides that in cases of such sales, when the inchoate interest of the wife is not directed by the court to' be sold or barred by virtue of the sale, the wife’s inchoate interest “shall become absolute and vest in the wife in the same manner and to, the same extent as such inchoate interest now becomes absolute upon the death of the husband,” etc.; and in Lewis v. Watkins, 150 Ind. 108, it was said to be settled law in this State, that the interest a widow inherits in the real estate of which her husband dies seized, as against, creditors, is free from all demands of such creditors, and that an order of court to sell such interest to, pay the debts of the estate, unless secured by a mortgage or other lien on said real estate which binds her interest therein, and the sale thereof, are absolute nullities, and if such interest is sold the purchaser takes, no title thereto; but that if the widow consent to such sale by the administrator under order of court,, and afterward receive her share of the purchase money, she would be es-topped from disputing the validity of the sale.
There can be no, doubt that the appellee was entitled to the entire surplus of the’proceeds of the land after the payment of the mortgage debt, the surplus being less than one-third of the amount for which the property sold under the foreclosure, and that neither of the appellants was entitled to any portion of tire surplus.
The question is not involved as to whether any order could properly be made in favor of the appellee in connection with the decree of foreclosure for the distribution or application of the surplus, if any, after satisfaction of the mortgage debt. It seems clear that the order for distribution to the judgment creditors could not properly be made as against the wife of the mortgage debtor, and the question before us relates to the sufficiency of the facts stated in her complaint to constitute a cause of action.
Among the alleged errors specified in the appellee’s complaint, it was assigned that the court erred in the order of distribution o*f the surplus, reciting that part of the decree, in substance*. It was also assigned that the court had no jurisdiction of the person of the appellee to render any judgment or decree against her affecting her right to the surplus money remaining from the sale of the land, after the satisfaction of the Lucas mortgages and the decree thereon, to the extent of one-third of the value of said real estate. It was also assigned that the court had no jurisdiction of the subject-matter to render any judgment or decree against the appellee affecting her rights to the surplus money remaining from the sale of the land, after satisfaction of the Lucas mortgages and decree thereon, to the extent of one-third of the value of the real estate.
Hpon the service of the summons shown by the complaint herein, the court acquired jurisdiction of the appellee for the adjudication of the matters pleaded in the complaint o*f Lucas, which she was summoned to answer, but not for the adjudication of any affirmative demand against her in be
In a proceeding for review of a judgment, the defendants may by answer deny that the record of the original action set out in the complaint for review is a correct and complete record. Kiley v. Murphy, 7 Ind. App. 239. By their demurrers the appellants admitted the correctness and completeness of the record set out in the appellees complaint. That record shows that the appellee was twice defaulted, both times upon the summons of the plaintiff, Lucas, and that upon the day of the last default the order of distribution of the surplus was made in connection with the decree of foreclosure.
Under the statute (§662 Burns 1901, §650 R. S. 1881) a summons for a defendant who has not appeared to the action is to be deemed a part of the record. Eo summons except that requiring the appearance of the defendants to the plaintiff’s complaint being in the record, it must be regarded as shown that there was no other summons for the appellee, who did not appear, in person or by attorney. Therefore, while the court had jurisdiction to determine her rights in the matter pleaded in the complaint of Lucas, wherein she was proceeded against merely as one of the mortgagors, and not as a lien-holder, it had no jurisdiction of her person for the adjudication as between her and the appellants of her right as a wife to the surplus after payment of the mortgage debt. So far as the judgment affected the appellee’s right to the surplus in favor of the judgment creditors, it was void. Beach v. Bell, 139 Ind. 167.
She' was not required, under the summons which was served upon her, to take notice that the judgment creditors of her husband might set up any claim except such as would affect the interest of her husband in the land or its proceeds. Indeed, the pleadings of the appellants Bartmess and Stuart
A proceeding for the review of a judgment for error of law appearing in the proceedings and judgment is in the nature of an appeal, and only allowable for errors of law apparent on the face of the record, for which the judgment would be reversed on appeal; but it differs from an appeal in that the only pleading necessary on appeal is the assignment of errors, while in the proceeding for review a complaint is necessary. Doubtless, it is a proper matter in such a complaint to show facts establishing the standing of the complainant as one entitled to bring the proceeding, as that he is an heir or devisee or the personal representative of a deceased party, or that he was under legal disability and filed his complaint within a year from the removal of the disability. So, in the appellee’s complaint, the court not having obtained jurisdiction of her person for the purpose of ordering distribution of the surplus, it would seem to have been proper to show either that the title to the mortgaged real estate was in her husband or that it was her own property. In either case, she would have an interest, which, in connection with the fact that she was a party in the original suit, wherein an. order was made affecting that interest, would give her a sufficient standing to seek a review of tho judgment.
The arguments of all parties here proceed upon the unquestioned assumption that the husband was the owner in fee. Without the allegation in the appellee’s complaint that
In Jones v. Vert, 121 Ind. 140, 16 Am. St. 379, it was said of a former suit to foreclose a mortgage: “There does not seem to have been any issue tendered or made, between the defendants. In short, there does not appear to have been any sirit pending between them. Any judgment, therefore, that the court may have pronounced, which purported to settle any title or claims between the defendants was coram non judice and void.” McFadden v. Ross, 108 Ind. 512; Finley v. Cathcart, 149 Ind. 470, 63 Am. St. 292.
In Whitney v. Marshall, 138 Ind. 472, it was held that a part of a decree which directed that a wife^s inchoate interest in certain real estate be sold and barred, being outside of the matters submitted by the pleadings, was not res judicata and not conclusive or binding upon the parties.
We need not determine in this case whether or not an absence from the issues before the court of the matter of the rights, of the appellee as against the judgment creditors to the surplus proceeds of the foreclosure sale would render the matter coram non judice and void in a collateral attack or on appeal. Here, the appellee was not before the court and bound to object to the proceedings relating to such matter. The court had not jurisdiction of her person for the purpose of the litigation of such question; and she may be heard on appeal to attack the order as void for want of jurisdiction of her person.
We have here to do with errors of law shown to be appar
An appeal will lie from a void judgment. Though the party whose rights the judgment purports to affect may have other mode of relief, he may resort successfully to an appellate tribunal and secure thereby a judicial determination of its validity. Board, etc., v. Logansport, etc., Co., 88 Ind. 199; Shoemaker v. Board, etc., 36 Ind. 175.
Among the various modes of attacking a void judgment, we think that by a complaint- in form for review is one. See Cain v. Goda, 84 Ind. 209.
Upon the hearing, the court may reverse or affirm the judgment in whole or in part, or modify it, as the justice of the case may require. §632 Bums 1901, §620 E. S. 1881.
Judgment affirmed.